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TORT ABORT

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Jakubczyk: Yes, your honor.
In other words, after at least seven months of investigation, Jakubczyk still had not developed any evidence that Finkel had caused the alleged medical problem.

After that admission, Judge Kamin threw out the lawsuit--and shortly thereafter, took even harsher action. On the request of Finkel's attorney, the judge assessed thousands of dollars of sanctions against Jakubczyk (according to court documents, enough to pay Finkel "back for every single penny" the suit had cost him).

The judge said Jakubczyk could not have "objectively thought the suit was well-grounded in fact and warranted by existing laws. . . ."

Kamin did not rule that Jakubczyk had filed the suit as part of a campaign of harassment, as Finkel's lawyer, Amy Langerman, had requested. But the sanctions--assessed under what is known as Rule 11 of the Code of Civil Procedures--nonetheless posed a significant threat to Jakubczyk. They could have been grounds for disciplinary action against him by the State Bar.

Jakubczyk appealed the sanctions. Langerman was direct in responding to the appeal: "Given the history between Mr. Jakubczyk and Dr. Finkel, as well as the total lack of causation evidence in this [malpractice] action, there can only be one conclusion: Mr. Jakubczyk instituted this action for the improper purpose of harassing and intimidating Dr. Finkel."

Finkel fired off a complaint to the State Bar, which regulates attorney conduct, asking for an investigation of Jakubczyk.

The Bar told him it would wait until Jakubczyk's appeal of the sanctions had been decided before taking any action. The Bar would wait a long time. It is still waiting.

More than two years later, the Arizona Court of Appeals reversed the Rule 11 sanctions assessed against John J. Jakubczyk. It is a ruling that should gladden the hearts of third-rate personal-injury attorneys across Arizona.

The appeals court said the mere "possibility" that Finkel had caused injury to the patient, as expressed in an affidavit written by Dr. McMillan, was enough proof of causation for Jakubczyk to have reasonably filed a malpractice lawsuit.

That ruling did not, of course, revive the malpractice lawsuit Jakubczyk had filed. It stayed dead as a doornail. And the appeals court didn't exactly sing praises about Jakubczyk's conduct, either.

The court noted that, from its reading of the Superior Court record, it seemed possible that Jakubczyk had violated standards of attorney conduct in all sorts of ways. For example, over the seven months the suit was pending, he never bothered to obtain records of the patient's "pertinent medical history"; in fact, he did not even have her undergo a physical exam, the court said.

But because the trial judge had not ruled specifically on those allegations, the appellate court said it had "no opinion" on whether other sanctions against Jakubczyk might have been appropriate.

The bottom line: The sanctions were dropped. Jakubczyk was officially, ethically pure.

"That was a case where the defense attorney just did a good job of defeating me," Jakubczyk says now. "They did a good job. They beat me. They won the case."

And what about the sanctions?
"Frankly, I'm not going to comment on how that all happened. It's behind me," he says. "Let's just say I was the lawyer on the case. I lost the case."

Although clearly upset and puzzled by the appeals-court ruling, Langerman, Finkel's attorney, chooses her words carefully before commenting. "There are many circumstances," Langerman says slowly, "where lawsuits are brought by litigants who are walking extremely close or on top of the line over which conduct would be sanctionable.

"All systems have loopholes," she says.
The State Bar isn't exactly working day and night to sew up this particular loophole. In fact, Finkel says the Bar has notified him that it will not investigate Jakubczyk's behavior in the case.

Harriet Turney, chief Bar counsel, would not confirm that, saying she is prohibited from commenting on specific complaints unless the Bar decides disciplinary action is warranted.

Turney did, however, agree to explain the Bar's discipline process.
Essentially, she says, unless someone asks a judge to assess legal sanctions against an attorney for violating ethics rules; unless the judge actually assesses those sanctions; and until those sanctions are upheld on appeal--unless and until all that happens, the Bar has no grounds to undertake disciplinary action against an attorney who engaged in conduct comparable to Jakubczyk's.

Later, when pressed for a bit more explanation, Turney puts it another way.

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John Mecklin